united states v. grandmaison, 1st cir. (1996)

7/26/2019 United States v. Grandmaison, 1st Cir. (1996)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 95-1674

UNITED STATES,

Appellee,

v.

PHILIP GRANDMAISON,

Defendant, Appellant.


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____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________

Bownes, Senior Circuit Judge, ____________________

and Keeton,* District Judge. ______________

____________________

Martin G. Weinberg, with whom Oteri, Weinberg & Lawson, Ca__________________ _________________________ _

Green, and Kimberly Homan, Sheketoff & Homan, were on bri_____ _______________ __________________

appellant.


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Peter E. Papps, First Assistant United States Attorney, wi______________

Paul M. Gagnon, United States Attorney, were on brief for appel ______________

____________________

March 1, 1996

____________________

______________________

*Of the District of Massachusetts, sitting by designation.


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BOWNES, Senior Circuit Judge. On February 8, 199 BOWNES, Senior Circuit Judge. ____________________

pursuant to a plea agreement with the government, defendan

appellant Philip Joseph Grandmaison ("Grandmaison") pl

guilty to a one count information charging him with utilizi

the mail system to defraud Nashua, New Hampshire, citizens

their right to the honest services of their public official

in violation of 18 U.S.C. 1341, 1346. Grandmaison n

appeals the eighteen-month sentence of imprisonment

received, contending that the district court failed to depa

downward from the minimum prison term mandated by t

Sentencing Guidelines ("Guidelines") because of the erroneo

view that it lacked authority to do so. We agree that t

district court misapprehended its authority to depa


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downward on aberrant behavior grounds. See Feder ___

Sentencing Guidelines Manual Ch. 1, Pt. A, Introduction

4(d) (1994). Accordingly, we vacate the sentence and rema

to the district court for a determination of whether

downward departure on the basis of aberrant behavior

warranted in this case. Jurisdiction stems from 18 U.S.C.

3742.

I. THE FACTS I. THE FACTS

We consider the facts as set forth in t

unobjected- to portions of the Presentence Investigati

Report ("PSR"), the information to which defendant pl

guilty, and the sentencing hearing transcript. See, e. ___ __


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-2- 2

United States v. LeBlanc, 24 F.3d 340, 342 (1st Cir.), cer _________________________ __

denied, -- U.S. --, 115 S. Ct. 250 (1994); United States______ ______________

Brewster, 1 F.3d 51, 52 (1st Cir. 1993). Grandmaison ser ________

as an "at-large" member on the Nashua Board of Alder

("Board") from 1986 to 1993. The Board consists of fifte


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members -- six of whom are elected at-large and nine of w

are elected from one of Nashua's nine electoral wards -- a

functions as Nashua's chief legislative arm, enacti

municipal legislation and approving all financing a

municipal construction projects. Grandmaison served on t

Board's Secondary School Coordinating Committee ("SSCC") a

the Joint Special School Building Committee ("JSSBC").

Like many of his aldermanic colleagues, Grandmais

also had a full-time job. He was employed as Marketi

Director of the Eckman Construction Company ("Eck

Construction"), a Bedford, New Hampshire-based company, fr

1989 to 1993. In addition to his job as Eck

Construction's Marketing Director, Grandmaison participat

in a number of charitable activities.


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In 1990, the Board began seeking construction bi

for a $6.3 million project, the renovation of Nashua's sixt

year old Elm Street Junior High School. Both the SSCC a

the JSSBC, the two committees on which Grandmaison serve

play integral roles in selecting a school constructi

contractor and in overseeing the construction process. T

-3- 3


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SSCC, inter alia, preselects school construction contractor _____ ____

oversees school construction or renovation work, and ma

recommendations concerning contractor expenditures a

payments. The JSSBC, which is comprised of both alderman a

Nashua School Board members, reviews the SSCC

recommendations regarding contractors, payments, and contra

modifications.

Eckman Construction submitted a bid for t

lucrative Elm Street School Project contract. In spite

the conflict in interest, Grandmaison remained on both t

SSCC and the JSSBC for months after Eckman Constructi

submitted its bid. He publicly recused himself from bo


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committees on January 9, 1991, but only after questions we

raised about his connections to Eckman Construction. T

subcommittee vacancies created by Grandmaison's departur

were filled by Alderman Thomas Magee ("Magee"), an at-lar

member of the Board and purported construction aficionado.

After recusal from the SSCC and JSSBC, Grandmais

continued as an at-large member of the Board. He al

secretly took steps to manipulate the contacts he enjoyed

an alderman to Eckman Construction's advantage. Fr

February 1991 until shortly before the Elm Street Project

completed, Grandmaison lobbied three of his alderman

colleagues -- Magee, Steve Kuchinski ("Kuchinski"), and An

Ackerman ("Ackerman"), SSCC chairperson -- on Eck


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-4- 4

Construction's behalf. Grandmaison distributed information

materials and video cassettes about Eckman construction

both Ackerman and Magee. At the behest of Hal Eck

("Eckman"), president of Eckman Construction, Grandmais

gave gratuities, gifts, and other things of value


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Kuchinski, Magee, and Ackerman before and after maj

contract selection votes. These gratuities and gift ite

included pay-per-view sporting events, dinners, mone

campaign contributions, and promises of future politic

support. Grandmaison also extended Ackerman a personal lo

and steered Eckman Construction printing jobs to the printi

business she owned.

These lobbying efforts eventually bore fruit.

June 1991, the Board awarded the Elm Street Project contra

to Eckman Construction by a vote of eight to seven, wi

Kuchinski casting the tie-breaking vote. The proje

contract, which the Board subsequently mailed to Eck

Construction, served as the basis for the charges brou


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against Grandmaison. The government charged Grandmaison wi

violating 18 U.S.C. 1341, 1346, the mail fraud statut

Specifically, it maintained that Grandmaison utilized t

mail system to forward a fraudulent scheme in violation

the oath of honest, faithful, and impartial service he to

before becoming an alderman and a host of state and loc

laws pertaining, inter alia, to conflicts of interes _____ ____

-5- 5


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influencing discretionary decisions by public servants, a

acceptance of pecuniary benefits by public officials. S

New Hampshire Revised Statutes Annotated 640 et seq. (1986__ ____

Supp. 1994); Nashua, N.H., Rev. Ordinances 2-273, 2-27

2-276, 2-278; and Nashua, N.H., Rev. Ordinances 7:5

7:59. The government also prosecuted Magee and Kuchinski f

their roles in this case.

Pursuant to a plea agreement with the governmen

Grandmaison pled guilty to a one count information chargi

him with utilizing the mail system to defraud Nashua citize

of their right to the honest services of their publ


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officials. The district court scheduled a sentencing heari

and prior thereto received a PSR from the Probati

Department. The PSR prepared by the Probation Departme

recommended a total adjusted guideline offense level

fifteen. This recommendation reflects an eight le

increase in the base offense because a public official in

decision making position committed the crime and a thr

level decrease for acceptance of responsibility. S

U.S.S.G. 2C1.7(b)(1)(B), 3E1.1 (a) and (b). Becau

Grandmaison had no prior criminal record, the Probati

Department placed him in Criminal History Category

resulting in a sentencing range of eighteen to twenty-fo

months.


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II. THE SENTENCING HEARING II. THE SENTENCING HEARING

-6- 6

At the sentencing hearing, Grandmaison requeste

downward departure to an offense level of eight, whi

corresponds to a sentencing range of zero to six mont

Grandmaison based this request on three interrelated groun


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1) his criminal conduct constituted "aberrant behavio

within the meaning of Guidelines Manual Ch. 1, Pt.

Introduction

4(d); 2) his extraordinary contributions to family, frien

and the community were not adequately addressed by t

Guidelines; and 3) the facts of his case warranted a downwa

departure by analogy to section 2C1.3 of the Guidelines. T

defense also submitted one hundred letters attesting

Grandmaison's good deeds and character at the sentenci

hearing. Based on these letters and Grandmaison's pri

record, the government agreed that downward departure

aberrant behavior grounds was appropriate and recommende

reduced prison sentence of twelve months and one day.


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The district court declined to depart downward

any of the three grounds advanced by Grandmaison. The cour

citing our decision in United States v. Catucci, 55 F.3d 1 ________________________

19 n.3 (1st Cir. 1995), as support, found that a "downwa

departure based on 'aberrant behavior,'" though general

available under the Guidelines, "was not available as

matter of law" in this case. It concluded that Grandmaison

conduct did not fall within the definition of aberra

-7-

7


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behavior. The definition adopted by the court required

showing of first-offender status, behavior inconsistent wi

otherwise good or exemplary character, and spontaneity

thoughtlessness in committing the crime of conviction.

Next, the court concluded that the facts did n

warrant downward departure on the basis of Grandmaison

contribution to family, friends, and the community. It

not make a specific finding on the section 2C1.3 claim rais

by Grandmaison, but did state that "no other grounds . .

advanced [by defendant or the government]. . . would justi


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departure downward." Accordingly, the court adopted t

PSR's factual findings and offense calculations in ful

Honoring the government's request for leniency, the cou

selected the lowest end of the applicable guideline range a

sentenced Grandmaison to an eighteen month term

imprisonment and two years of supervised release. The cou

also assessed Grandmaison $50.00, as required by statute.

III. REFUSALS TO DEPART FROM THE GUIDELINES III. REFUSALS TO DEPART FROM THE GUIDELINES

Before addressing the three grounds on whi

defendant rests his appeal, we briefly discuss the rul

pertaining to refusals to depart from sentences prescribed

the Guidelines. Under the Sentencing Reform Act, sentenci

courts are expected to apply the Guidelines, adjust the ba


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offense level as the facts require, calculate a sentenci

range, and impose a sentence within the identified ran

-8- 8

United States v. Jackson, 30 F.3d 199, 201 (1st Cir. 1994 ________________________

see 18 U.S.C. 3553(b); Guidelines Manual Ch. 1, Pt.

___

Introduction 4(b). In general, sentencing courts are


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regard "each guideline as carving out a 'heartland,' a set

typical cases embodying the conduct each guideli

describes." Guidelines Manual Ch. 1, Pt. A, Introducti

comment 4(b). Departures are warranted only where a case

atypical or where the facts are significantly outside t

norm. Jackson, 30 F.3d at 201._______

Decisions to depart generally fall into one

three categories: forbidden, discouraged, and encourage

Forbidden departures are those based, inter alia, on rac _____ ____

sex, national origin, creed, religion, or socioecono

status. See Jackson, 30 F.3d at 202; United States___ _______ _______________

Rivera, 994 F.2d 942, 948-49 (1st Cir. 1993); U.S.S.G.______


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5H1.10, 5H1.12. The Sentencing Commission ("Commission")

expressly precluded departure on these grounds, even whe

they make a case atypical or extraordinary. Rivera, 994 F. ______

at 948-49. Discouraged departures involve factors which we

considered by the Commission -- such as age, family ties a

responsibilities, employment record, good works, or physic

condition -- but which present themselves to an extraordina

degree in a particular case. United States v. DeMasi,________________________

F.3d 1306, 1323-24 (1st Cir. 1994), cert. denied, -- U.S. - _____ ______

115 S. Ct. 947 (1995); United States v. Hilton, 946 F.2d 95 _______________________

-9- 9


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959 (1st Cir. 1991). Encouraged departures, in contras

involve considerations not previously taken into account

the Commission. Hilton, 946 F.2d at 959.______

Because the Commission intended departures on a

grounds to be the exception rather than the rule, Jackso _____

30 F.3d at 201, a district court's refusal to depart

upward or downward -- is ordinarily not appealable. S


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United States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994 __________________________

United States v. Gaines, 7 F.3d 101, 105 (7th Cir. 1993 ________________________

Hilton, 946 F.2d at 957. The well-established rule is t ______

appellate courts lack jurisdiction to review discretiona

district court decisions not to depart from sentences impos

under the Guidelines. See United States v. Byrd, 53 F. ___ ______________________

144, 145 (6th Cir. 1995); United States v. Gifford, 17 F. ________________________

462, 473 (1st Cir. 1994); United States v. Amparo, 961 F. _______________________

288, 292 (1st Cir.), cert. denied, 506 U.S. 878 (1992)._____ ______

There are, however, certain exceptions to t

rule. Appellate jurisdiction attaches, for example, whe


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the record indicates that the trial court's failure to depa

was the product of a mistake of law. Gifford, 17 F.3d_______

473; Amparo, 961 F.2d at 292; Hilton, 946 F.2d at 957. If______ ______

appears that a misapprehension of the applicable guideline

miscalculation of the authority to deviate from the guideli

range prevented the court from departing downward, appella

review is appropriate. Gifford, 17 F.3d at 473; Unit _______ ___

-10- 10


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district court adopted the proper standard [

interpretation] is a question of law subject to plena

review.").

IV. DISCUSSION IV. DISCUSSION

The crux of Grandmaison's appeal is that t

district court misunderstood the scope of its departu

authority. He argues that the court erroneously conclu

that it was precluded from departing downward on the groun

of aberrant behavior and extraordinary offen

characteristics. Additionally, he maintains that the cou

misapprehended its power to depart downward by analogy

section 2C1.3 of the Guidelines, which concerns conflicts

interest. See U.S.S.G. 2C1.3. We begin by analyzing t ___


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claim that the facts of this case permit downward departu

on the basis of aberrant behavior and discuss the t

remaining bases for appeal in turn.

-11- 11

A. Aberrant Behavior as a Basis for Downwa A. Aberrant Behavior as a Basis for Downwa

Departure. Departure


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1. Jurisdiction and the District Court 1. Jurisdiction and the District Court

Refusal to Depart. Refusal to Depart.

The threshold issue raised by defendant's aberra

behavior claim is whether we have jurisdiction to review t

district court's refusal to depart downward. Pierro, 32 F.

______

at 619. We note at the outset, though it does not rela

directly to questions of jurisdiction, that the basic premi

of defendant's aberrant departure claim is correct. T

Guidelines permit downward departures on the basis

aberrant behavior. See, e.g., Catucci, 55 F.3d at 19 n

___ ____ _______

(citing cases); Marcello, 13 F.3d at 760 (citing cases ________

Gifford, 17 F.3d at 475; United States v. Morales, 972 F.

_______ ________________________

1007, 1011 (9th Cir. 1992), cert. denied, -- U.S. --, 113


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_____ ______

Ct. 1665 (1993). Such departures fall into the catego

embracing factors not previously considered by t

Commission. United States v. Premachandra, 32 F.3d 346, 3 _____________________________

(8th Cir. 1994); United States v. Fairless, 975 F.2d 66

__________________________

668-69 (9th Cir. 1992); see Guidelines Manual Ch. 1, Pt.___

Introduction 4(d)("The Commission, of course, has not dea

with the single acts of aberrant behavior that still

justify probation at higher offense levels throu

departures."). And they may be employed whether the senten

computed involves imprisonment or merely probation. S


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-12- 12

United States v. Duerson, 25 F.3d 376, 380 (6th Ci ___________________________

1994)(citing cases); Fairless, 975 F.2d at 668.

________

Consistent with the departure recommendation

entered at sentencing, the government acknowledges t

aberrant behavior departures are available under t


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Guidelines, but maintains that we lack jurisdiction to revi

defendant's claim because the district court's refusal

depart was an exercise of discretion. Defendant disput

this, arguing that he has cleared his jurisdictional hur

because the record clearly shows that the district court

refusal to depart stemmed from a misapprehension of i

authority to depart on aberrant behavior grounds. S

Gifford, 17 F.3d at 473; Pierro, 32 F.3d at 611. Havi _______ ______

reviewed the totality of the record, as we are obligated

do, see United States v. Morrison, 46 F.3d 127, 130 (1st Ci ___ _________________________

1995)(citing United States v. LeBlanc, 24 F.3d 340, 348 (1 _________________________

Cir.), cert. denied, -- U.S. --, 115 S. Ct. 250 (1994)),_____ ______


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find that the truth lies somewhere between these t

positions.

The record reveals that the district cou

understood its general authority to depart on aberra

behavior grounds, but adopted the wrong standard

determining whether defendant's behavior was "aberrant" un

the Guidelines. The court erroneously held that an aberra

behavior departure in this Circuit requires an initi

-13- 13


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finding of "spontaneity" or a "thoughtless act

Anticipating our review, the court also made it clear that

would have granted the departure requests entered by bo

defendant and the government had it not believed itself bou

to this standard:

THE COURT: And so I'm going to

sentence you at the lowest end of the

guidelines range that otherwise is

applicable in your case. If the Court of

Appeals disagrees with my interpretation

of aberrant behavior and the case is

returned, if it helps the Court of

Appeals in terms of imposing sentence on

appeal or resolving the question on

appeal, assuming you do appeal, I will

say on the record that if I thought I


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could depart on a principled basis and

consistent with the law, I would follow

the U.S. Attorney's recommendation and I

would sentence you to one year -- 12

months and one day.

Based on this statement, we think it plain that the cou

misunderstood its authority to depart downward under the l

of this Circuit.

We therefore agree with defendant on this initi

matter of jurisdiction. The district court's misapprehensi

of its departure authority confers jurisdiction on t

court. See Gifford, 17 F.3d at 473; Pierro, 32 F.3d at 61 ___ _______ ______

The de novo standard of review governs our review of t __ ____

aspect of defendant's claim. See Marcello, 13 F.3d at 755.___ ________


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2. A Definition of Aberrant Behavior. 2. A Definition of Aberrant Behavior.

-14- 14

The Guidelines refer to "single acts of aberra

behavior," but neither define that phrase nor provide a

insight into what the Commission might have meant when


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used it. See Guidelines Manual Ch. 1, Pt. A, Introduction___

4(d); United States v. Williams, 974 F.2d 25, 26 (5th Ci

_________________________

1992), cert. denied, 507 U.S. 934 (1993). Defendant's cla _____ ______

presents an issue of first impression in this Circuit.

have considered cases involving departure requests based

aberrant behavior, see, e.g., Catucci, 55 F.3d at 19 n. ___ ____ _______

United States v. Pozzy, 902 F.2d 133, 137-38 (1st Cir. ________________________

cert. denied, 498 U.S. 943 (1990); United States v. Russel _____ ______ ______________________

870 F.2d 18, 21 (1st Cir. 1989), but have not had occasion

define that term with specificity until now. Catucci, supr _______ ___

which the district court erroneously regarded as foreclosi

departure, did not require us to define "aberrant behavior


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In that case, we acknowledged disagreement among the circui

as to what type of conduct aberrant behavior entails but

not deem it necessary to articulate a definition for our o

Circuit because we found that the defendant had waived

departure claim. Grandmaison's claim, in contrast, hinges

an articulation of an aberrant behavior standard.

therefore, turn our attention to that task.

Two cases establish what have come to be recogniz

as the outer boundaries of the aberrant behavior spectru

United States v. Russell, 870 F.2d 18 (1st Cir. 1989), stan ________________________

-15-

15


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at one end of the spectrum and United States v. Carey, 8 _______________________

F.2d 318 (7th Cir. 1990), at the other. Russell invol _______

criminal conduct which was impulsive and unpremeditate

Tempted by the prospect of instant wealth, a Wells Far

armored truck driver and his partner decided to keep an ext

bag of money mistakenly handed them. The driver, who had

prior criminal record, returned the money almost immediate


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after committing his crime and cooperated in the subseque

police investigation. In contrast, Carey involved_____

premeditated criminal scheme carried out over a long peri

of time. There, a trucking company president engaged in

check-kiting scheme over a fifteen-month period. Each wo

day during this period the company president concealed

two over-drawn bank accounts by having his bookkeeper prepa

checks to cover the fund shortage. He signed each check a

frequently deposited them himself. The Seventh Circuit he

that this behavior was not "aberrant." 895 F.2d at 324-2

Uncertainty about the reason for the district court's refus

to depart precluded this court from deciding that issue

Russell._______


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Circuit courts are divided over where crimin

conduct must fall on the aberrant behavior spectrum

justify downward departure. As we noted in Catucci, so _______

have adopted an expansive view of what aberrant behavi

means in the context of the Guidelines, whereas othe

-16- 16


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require a spontaneous or thoughtless act of the so

committed by the defendant in Russell. The Seventh Circuit

_______

decision in Carey provided the moorings for the latter gro _____

of circuits. The Carey court held that "[a] single act

_____

aberrant behavior . . . generally contemplates a spontaneo

and seemingly thoughtless act rather than one which was t

result of substantial planning because an act which occu

suddenly and is not the result of a continued reflecti

process is one for which the defendant may be arguably le

accountable." 895 F.2d at 325. The Seventh Circuit lat

reinforced this tight interpretation in United States______________

Andruska, 964 F.2d 640, 645-46 (7th Cir. 1992), a decisi ________


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reversing a district court's decision to depart downward in

case involving a woman found guilty of concealing

fugitive paramour from arrest.

The Third, Fourth, Fifth, and Eighth Circuits ha

embraced the Seventh Circuit's view of aberrant behavio

For example, in Marcello, supra, the Third Circuit explain ________ _____

that "there must be some element of abnormal or exception

behavior" before adopting the Seventh Circuit's spontanei

requirement and reversing the district court's decision

depart downward. 13 F.3d at 761. The Marcello defendant________

an attorney who, on seven separate occasions, structured ba

deposits to avoid tax reporting requirements in violation


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-17- 17

31 U.S.C. 5322(a), 5324(3). He committed these offens

over the span of seven consecutive working days.

Cases involving extensive planning or repeat

criminal acts received similar treatment in the Fourt

Fifth, and Eighth Circuits. In United States v. Glick, 9


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_______________________

F.2d 335, 338 (4th Cir. 1991), the Fourth Circuit reverse

downward departure decision after noting that the defenda

transported letters containing stolen trade secrets acro

state lines on several occasions. In Williams, supra, t ________ _____

Fifth Circuit affirmed a district court's refusal to depa

downward because the robbery executed by the defenda

involved planning. Similarly, the Eighth Circuit found t

a bank fraud scheme carried out over a one year period lac

the level of spontaneity and thoughtlessness required

cases such as Carey. See United States v. Garlich, 951 F. _____ ___ ________________________

161, 164 (8th Cir. 1991); see also Premachandra, 32 F.3d___ ____ ____________

349.


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In contrast, the Ninth and Tenth Circuits ha

eschewed any focus on spontaneity and thoughtlessness, opti

instead for a broad view of aberrant behavior. They requi

reviewing courts to employ the totality of the circumstanc

test in making aberrant behavior determinations. Under t

test, courts consider a variety of mitigating factors, su

as pecuniary gain to the defendant, prior good deeds, and

effort to mitigate the effects of the crime in evaluati

-18- 18


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whether a defendant's conduct was unusual or, mo

specifically, "aberrant." See, e.g., United States v. Taka ___ ____ ____________________

941 F.2d 738, 741 (9th Cir. 1991).

In Takai, the Ninth Circuit affirmed the distri _____

court's decision to depart downward after finding that t

defendants who pled guilty to bribery of and conspiracy

bribe an Immigration and Naturalization Service officia

inter alia, received no pecuniary gain, had no crimin _____ ____

record, and had been influenced by a government agent.

convergence of factors, such as the defendant's man


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depression, suicidal tendencies, and recent unemploymen

also led the Ninth Circuit to affirm downward departure

Fairless, supra, an armed robbery case. Similarly, in Unit ________ _____ ___

States v. Pena, 930 F.2d 1486, 1494 (10th Cir. 1991), a dr ______________

possession case, the Tenth Circuit held that downwa

departure was appropriate because the defendant's behavi

was an aberration from her usual conduct, which

highlighted by long-term employment, no abuse or pri

distribution of controlled substances, and economic suppo

of her family.

We are persuaded, after reviewing the cases deci

by our colleagues in other circuits, that the approach ta

by the Ninth and Tenth Circuits achieves the balance betwe


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uniformity in sentencing and district court discretion t

Guidelines were intended to strike. See Jackson, 30 F.3d

___ _______

-19- 19

201-02. We, thus, hold that determinations about whether

offense constitutes a single act of aberrant behavior shou


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be made by reviewing the totality of the circumstance

District court judges may consider, inter alia, factors su _____ ____

as pecuniary gain to the defendant, charitable activitie

prior good deeds, and efforts to mitigate the effects of t

crime in deciding whether a defendant's conduct is aberra

in terms of other crimes. See DeMasi, 40 F.3d at 13 ___ ______

(departure determination should be made by comparing case

other cases involving the stated reason for departure

Spontaneity and thoughtlessness may also be among the facto

considered, though they are not prerequisites for departure

That aberrant behavior departures are available

first offenders whose course of criminal conduct invol

more than one criminal act is implicit in our holding. S


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Takai, 941 F.2d at 743. We think the Commission intended t _____

word "single" to refer to the crime committed and not to t

various acts involved. As a result, we read the Guideline

reference to "single acts of aberrant behavior" to inclu

multiple acts leading up to the commission of a crime. S

id. Any other reading would produce an absurd resul ___

District courts would be reduced to counting the number

acts involved in the commission of a crime to determi

whether departure is warranted. Moreover, the practic

effect of such an interpretation would be to make aberra

-20- 20


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behavior departures virtually unavailable to most defendan

because almost every crime involves a series of crimin

acts. Even the Russell defendant, whose spontaneous actio _______

are widely regarded as a classic example of aberra

behavior, could be understood to have committed more than

single act of aberrant behavior. He conspired with

partner to take money from the armored truck he drove; to


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the money; and then kept the money for a short period

time. Thus, we think that focusing on the crime

conviction instead of the criminal acts committed in carryi

out that crimebest comports with what theCommission intende

The approach we now adopt does not unnecessari

expand opportunities for departure under the Guidelines. T

totality of the circumstances test, though admittedly broa

than the spontaneity test employed in Carey, is consiste _____

with the Commission's intention to limit applications of t

aberrant behavior principle. See Andruska, 964 F.2d at 64

___ ________

Concerns that it ensures every first offender a downwa

departure from their Guidelines-imposed sentence are witho

foundation. As the Ninth Circuit explained in United Stat __________


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v. Dickey, 924 F.2d 836 (9th Cir. 1991), "aberrant behavi _________

and first offense are not synonymous." 924 F.2d at 838; s

Glick, 946 F.2d at 338. Without more, first-offender stat _____

is not enough to warrant downward departure.

-21- 21


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District courts are not, however, precluded fr

considering first-offender status as a factor in t

departure calculus. Departure-phase consideration of

defendant's criminal record does not, we think, wron

duplicate the calculations involved in establishing

defendant's criminal history category under the Guideline

First, as we just noted, it is obviously not the case t

every defendant in Criminal History Category I will

qualified for an aberrant behavior departure. There will

individuals in that category who, for instance, are n

entitled to departure because they were convicted of sever

unrelated offenses or who have been regular participants


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elaborate criminal enterprises. See Morales, 972 F.2d___ _______

1011. Second, to the extent that considering a defendant

criminal record at both the criminal history and departu

stages amounts to double counting, the Guidelines clear

permit it. But see Marcello, 13 F.3d at 755 (3d Cir

___ ___ ________

(concluding that the Guidelines prohibit considering

defendant's criminal record at both the criminal history a

departure stages). The Guidelines explain that "the cou

may depart . . . even though the reason for departure

taken into consideration . . . if the court determines tha

in light of unusual circumstances, the guideline le

attached to that factor is inadequate." U.S.S.G. 5K2.0.


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-22- 22

The question now becomes whether defendant

conduct falls within the ambit of aberrant behavior under t

standard we have articulated. We leave this to the distri

court's discretion. It occupies the best vantage point fr

which to make the decision. Rivera, 994 F.2d at 950.______


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therefore, vacate defendant's sentence and remand f

resentencing.

B. Extraordinary Offender Characteristics asB. Extraordinary Offender Characteristics as

Basis for Downward Departure. Basis for Downward Departure.

Defendant's second argument on appeal is that t

district court misunderstood its authority to depart on t

ground of his extraordinary characteristics. We agree t

extraordinary characteristics such as unusual fami

obligations or exceptional charitable activities may,

certain circumstances, provide a basis for a downwa

departure. See, e.g., United States v. Haverstat, 22 F. ___ ____ ___________________________

790, 795-96 (8th Cir. 1994), cert. denied, -- U.S. --, 116_____ ______

Ct. 671 (1995); United States v. Canoy, 38 F.3d 893, 905- _______________________


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(7th Cir. 1994); Rivera, 994 F.2d at 948-53; United States______ _____________

Sclamo, 997 F.2d 970, 973-74 (1st Cir. 1993); Pena, 930 F. ______ ____

at 1495; United States v. Big Crow, 898 F.2d 1326, 1332 (8 _________________________

Cir. 1990). We disagree, however, that the district cou

misunderstood its authority to depart. It appears clear t

the court found that defendant's family obligations a

charitable activities, though noteworthy, were neit

extraordinary nor exceptional.

-23- 23


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The best indicator of the district court

unwillingness to depart downward on the basis

extraordinary characteristics is the stark difference betwe

the court's sentencing-hearing statements about departure

this basis and on the grounds of aberrant behavior. W

asked to make a finding about defendant's extraordina

offender characteristics claim, the district court stated:

THE COURT: To the extent you've asked me

to depart based on that, I would find

that those, extraordinary commitment to

family and extraordinary offender

characteristics, don't rise to the level


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that would justify a departure out of the

heartland of the guidelines . . . So to

the extent I have discretion in that

regard, I exercise my discretion not to

depart downward.

These statements make it plain that the district court

refusal to depart stemmed from an exercise of discretio

See DeCosta, 37 F.3d at 8 ("[we suggest] . . .[t]hat t ___ _______

district court say . . . that it has considered t

mitigating factors urged but does not find them sufficient

unusual to warrant a departure in the case at hand.").

even if we were to assume that these statements a

ambiguous, that ambiguity, without more, would not be enou

to make the district court's refusal to depart appealabl

Morrison, 46 F.3d at 132; see United States v. Romero,________ ___ ________________________


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F.3d 641, 654 (1st Cir. 1994). Our review of this matter i

thus, at an end. We lack jurisdiction to review the distri

-24- 24

court's refusal to depart downward on the basis

extraordinary offender characteristics. Byrd, 53 F.3d____


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145; Gifford, 17 F.3d at 473. _______

C. The Heartland of Section 2C1.7 of the C. The Heartland of Section 2C1.7 of the

Guidelines. Guidelines.

Defendant's final argument on appeal concerns t

scope of section 2C1.7 of the Guidelines, which correspon

to 18 U.S.C. 1341, 1346, the mail fraud statute to whi

he pled guilty. Without disputing section 2C1.7's gener

applicability to his conduct, defendant maintains that t

district court misapprehended its authority to impose

shorter prison term by departing downward, by analogy, to t

sentence prescribed under section 2C1.3 of the Guideline

For individuals in Criminal History Category I, section 2C1

-- which concerns conflicts of interest by present and for


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federal officers and employees -- carries a sentencing ran

of zero to six months. Section 2C1.7 imposes a sentenci

range of eighteen to twenty-four months for individuals

the same category. See U.S.S.G. 2C1.7 (Fraud Involvi ___

Deprivation of the Intangible Right to the Honest Services

Public Officials); U.S.S.G. 2C1.3 (Conflict of Interest).

Though cast as a claim relating to the distri

court's refusal to depart, defendant's argument, at its cor

primarily concerns the heartland of section 2C1.7 of t

Guidelines. Defendant essentially argues that his condu

falls outside the heartland of section 2C1.7 and within t

-25- 25


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scope of section 2C1.3 because it primarily involved

conflict of interest, not fraud. Because questio

concerning the scope and meaning of a guideline, unli

questions pertaining to the facts which lead a district cou

to render its departure decision, are quintessentially le

in nature, see LeBlanc, 24 F.3d at 345, Rivera, 994 F.2d___ _______ ______

952, we have jurisdiction to review defendant's claim.

review is plenary, as it is whenever a district court


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decision "reflect[s] a determination of the purpose of, or

interpretation of the language in, a guideline or statute

LeBlanc, 24 F.3d at 344; see United States v. Rosales,_______ ___ _________________________

F.3d 763, 769 (1st Cir. 1994).

To determine whether defendant's conduct is of t

sort which generally falls within section 2C1.7

"heartland," we must determine the nature of the underlyi

crime of mail fraud. See, e.g., LeBlanc, 24 F.3d at 346.___ ____ _______

look in part to the language of the mail fraud statute and

the legislative history which accompanies it. Id.___

relevant part, section 1341 provides:

Whoever, having devised or intending to

devise any scheme or artifice to defraud,


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or for obtaining money or property by

means of false or fraudulent pretenses,

representations, or promises . . . for

the purpose of executing such scheme or

artifice or attempting so to do, [uses

the mail system or causes it to be used]

shall be fined under this title or

imprisoned not more than five years, or

both. If the violation affects a

financial institution, such person shall

-26- 26


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be fined not more than $1,000,000 or

imprisoned not more than 30 years, or

both.

Congress enacted this statute in 1872, as

general proscription against using the mails to initia

correspondence in furtherance of 'any scheme or artifice

defraud.'" McNally v. United States, 483 U.S. 350, 355, 3 ________________________

(1987). The legislative history suggests that Congre

intended the mail fraud statute to protect people fr

"schemes to deprive them of their money or property." Id.___

356. Before 1987, section 1341 was read as a broad shiel

protecting individuals against schemes to deprive them

intangible, as well as tangible, property. Then, in 198

the Supreme Court held that the statute did not embra


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intangible rights. McNally held that the mail fraud statu _______

does not prohibit schemes to defraud individuals of the

intangible rights to the honest services of government. 4

U.S. at 359-60; see Carpenter v. United States, 489 U.S. 1 ___ __________________________

25 (1987).

In 1988, Congress enacted section 1346, the hone

services amendment, to reverse the Supreme Court's decisi

in McNally. United States v. Bucuvalas, 970 F.2d 937, 9 _______ ___________________________

n.9 (1st Cir. 1992); United States v. Alkins, 925 F.2d 54 _______________________

548 (2d Cir. 1991); McEvoy Travel Bureau, Inc. v. Herita _____________________________________

Travel, Inc., 904 F.2d 786, 790 (1st Cir. 1990); see 1 _____________ ___

Cong. Rec. S17360-02 (daily ed. November 10, 1988)(Judicia


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-27- 27

Committee analysis)("This section overturns the decision

McNally v. United States . . . Under [this] amendment, [t ________________________

mail and wire fraud] statutes will protect . . . the right

the public to the honest services of public officials."

Section 1346 became effective on November 18, 1988 a


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provides:

For the purposes of this chapter, the

term "scheme or artifice to defraud"

includes a scheme or artifice to deprive

another of the intangible right of honest

services.

See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Tit ___

VII, 7603 (a), 102 Stat. 4508 (1988). It restores ma

fraud convictions to their pre-McNally status by allowing t _______

government to predicate mail fraud prosecutions

deprivations of the intangible right of honest service

United States v. Bryan, 58 F.3d 933, 940 n. 1 (4th Ci _______________________

1995); Waymer, 55 F.3d at 568 n.3; see 135 Cong. Rec. S10 ______ ___


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(daily ed. February 2, 1989)(statement of Sen. Biden).

offense under section 1346 is established when the eviden

demonstrates that the use of the mail system played a role

executing the deprivation of the honest services

government. Schmuck v. United States, 489 U.S. 705, 7

__________________________

(1989)(citing Kann v. United States, 323 U.S. 88, 95 (1944) _____________________

see United States v. Yefsky, 994 F.2d 885, 890, 892 (1st Ci ___ _______________________

-28- 28


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1993); United States v. Dray, 901 F.2d 1132, 1137 (1st Ci

______________________

1990), cert. denied, 498 U.S. 895 (1990)._____ ______

Section 1346 includes cases in which the ma

system plays an integral role in the scheme to defra

citizenry of the honest services of government, as well

schemes in which use of the mail system is only incidental

the larger plan. Id. at 710-11; see United States v. Morro ___ ___ _____________________

39 F.3d 1228, 1236-37 (1st Cir. 1994), cert. denied, 115

_____ ______

Ct. 1421 (1995) (mail fraud generally includes incidental u


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of the mails in furtherance of a scheme to defraud). T

Eleventh Circuit recently affirmed a defendant's convicti

on twenty-two counts of mail fraud even though the defenda

only used the mail system to receive payments from

partner in a money laundering the scheme. In Waymer, supr ______ ___

the court rejected claims that section 1346 is vague a

overbroad and reiterated the Supreme Court's conclusion

Schmuck, supra, that "[i]t is sufficient for the mailing_______ _____

be 'incident to an essential part of the scheme' or 'a st

in the plot.'" 55 F.3d at 569; see also Badders v. Unit ___ ____ ______________

States, 240 U.S. 391, 393-94 (1916). In Waymer, t ______ ______

defendant was an elected member of the Atlanta Board


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Education who failed to fully disclose his relationship wi

the contractor who provided pest control services

Atlanta's public schools. Unbeknownst to the other scho

board members, the defendant received fifteen percent of a

-29- 29

the proceeds from the contractor's contracts with the scho


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system.

Courts have read section 1346 to include efforts

public officials and employees to conceal their fraudule

acts from the public "by means of false or fraudule

pretenses, representations, promises, or other decepti

conduct." See McEvoy Travel, 904 F.2d at 791. For exampl ___ _____________

the Fourth Circuit recently upheld the conviction of a publ

official on such grounds in United States v. Bryan, 58 F. ______________________

933 (4th Cir. 1995). In that case, the Director of the We

Virginia Lottery orchestrated a scheme whereby he secret

ensured that lottery contracts and contract bids were awar

to companies with whom he had a personal relationship. T

Fourth Circuit held that section 1346 applied to t


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defendant's conduct. 58 F.3d at 939-41. Similarly, Unit ___

States v. Alkins, 925 F.2d 541 (2d Cir. 1991), a Seco

__________________

Circuit case, upheld the section 1346-based convictions

six Department of Motor Vehicles employees because t

failed to disclose their fraudulent activities to departme

officials. 925 F.2d at 549. The defendants in that ca

secretly processed improperly documented applications f

driver's licenses, identification cards, and vehic

registrations in return for monetary disbursements.

We hold that the conduct to which Grandmaison pl

guilty falls within the range of conduct Congress intended

-30- 30


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U.S.C. 1341, 1346 to encompass and, concomitantly, res

squarely within the heartland of section 2C1.7. Grandmais

continued to lobby Board members on behalf of Eck

Construction after his recusal from the SSCC and JSSBC.

secretly delivered gratuities to Magee, Ackerman, a

Kuchinski to secure favorable votes on Eckman Construction

bid. He distributed informational materials about Eck


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Construction to Magee and Ackerman without disclosing

actions to other Board members. And he caused the Elm Stre

Project contract to be sent to Eckman Construction via t

mail system. Though there is no evidence that Grandmais

received direct monetary benefit from his actions, there c

be little doubt that under cases such as Waymer, Bryan, a ______ _____

Alkins he deprived the citizens of Nashua of the hone ______

services of their government under section 1346. This is n

an unusual case.

Defendant maintains that he is mainly guilty of n

revealing a conflict of interest. To be sure, his condu

involved some element of such a violation. It does n

follow from this, however, that he should not be sentenc


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pursuant to section 2C1.7, the guideline corresponding to t

mail fraud

-31- 31


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statute to which he pled guilty. First, we are convinc

that 18 U.S.C. 1341, 1346 encompasses crimes of the so

committed by defendant. Second, even if the applicability

section 1346 were suspect, we are not at all certain t

downward departure to the sentence prescribed by secti

2C1.3 would be appropriate. This is principally becau

section 2C1.3 linguistically does not apply to defendant

his conduct; that guideline only addresses conflicts

interests by present or former federal officers and employe

and, therefore, does not reach state or local officials su

as defendant. In the final analysis, defendant has mana

to persuade us of only one thing: that had he been a feder

employee or official, the government might have been able


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charge him with violating other statutes as well. S

U.S.S.G. 2C1.3 (listing statutory provisions correspondi

to that guideline). Because this argument clearly does n

merit the application of a lower sentencing range defenda

seeks, we affirm the district court's refusal to depa

downward by analogy to section 2C1.3.

V. CONCLUSION V. CONCLUSION

For the foregoing reasons, we vacate Grandmaison

sentence and remand for resentencing under the aberra

behavior standard formulated in this opinion. Defendant

appeal for downward departure on the basis of

extraordinary offender characteristics is dismissed for la


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-32- 32

of jurisdiction. And we affirm the district court's refus

to depart downward by analogy to section 2C1.3 of t

Guidelines.

It is so ordered.It is so ordered.________________


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-33- 33

united states v. grandmaison, 1st cir. (1996)

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